Actually, the judiciary would have less power under Barnett's theory because original intent can be used to identify "retained rights" under the Ninth Amendment. Under post-New Deal Constitutional interpretation, there is no constraint to the rights that the judiciary now creates under the guise of due process or equal protection.
Also, democratically enacted laws are as much a facilitator of federal power as the judiciary, if not more. The entire welfare state was created from majoritariamism, but would be unconstitutional under Barnett's theory.
I think not. From my reading Randy Barnett would have the federal judiciary identifying rights and liberties previously retained by the people. He supports Lawrence v Texas precisely because of that reasoning. The federal judiciary can just as easily abridge rights as they can create them if they are the sole and final arbiter of "rights".
Under post-New Deal Constitutional interpretation, there is no constraint to the rights that the judiciary now creates under the guise of due process or equal protection.
I know and Randy Barnett, I believe, is quite comfortable with that. Roe and Lawrence were power grabs by the judiciary. Assigning them more power to check their power ain't gonna work.
But hey, I wear a blue collar, what the heck do I know?
I see this as a simple reenactment of the federalist/anti-federalist debates of yore and my 53 years on this planet tells me that government is best closest to the people. Yes there are rights that are inalienable and those rights are retained by the people always but the judiciary is wont to turn liberty questions properly left with the states into "rights".
The "right" to kill a full term unborn child should make us all leery of placing more power in the hands of the federales.